The Blog of International Judicial Assistance | By Ted Folkman of Pierce Bainbridge

Case of the Day: Masri v. Masri

Posted on January 31, 2017

The case of the day is Masri v. Masri (N.Y. Sup. Ct. 2017). The parties were married, but separated, Orthodox Jews. The wife brought an action for divorce in the civil courts. Her husband refused to give her a get, a bill of divorce that would effect a divorce under Jewish law. Without a get the wife cannot remarry under religious law, and if she were to have children, they would be considered mamzerim, which would have bad consequences for their ability to marry under Jewish law. In short, the wife faced all kinds of religious problems on account of her husband’s refusal to give the get. This situation is the well-known problem of the agunah, or “chained woman,” which many Jewish groups have been trying to solve within the boundaries of Jewish divorce law.

The wife brought an action in the bet din, the Jewish court, seeking its aid in obtaining the get. Note that there was no prenuptial agreement to arbitrate, let alone to arbitrate in the bet din. The husband refused to participate, arguing that the wife had waived her right to go to the bet din by bringing the civil action for divorce. The bet din ruled that the issue of waiver was itself an issue that had to be decided by the bet din. The husband still refused to participate and was declared a “Rabbinical Court evader” (which has various bad effects on the evader’s standing in the Jewish community, but is not akin to a default judgment).

In the civil case, the wife asked the court to award spousal support in the amount of $2,000 per month “until such time as the [husband] removes barriers to the [wife’s] remarriage and gives the wife] a ‘standard’ and ‘unconditional’ Jewish Divorce, or Get.”
There are two key facts to understand, and one key statute. First the statute, § 253 of New York’s Domestic Relations Law, which provides: “No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision,” and which defines “barrier to remarriage” to include “any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party’s commission or withholding of any voluntary act.…”

Now the facts. First is the lack of a prenuptial agreement to arbitrate before a bet din, which are now in common use and which the New York courts have enforced over constitutional challenges. In those cases, courts have withheld civil economic relief or imposed contempt remedies when the husband refuses to arbitrate.

Second is the reason the husband gave for refusing the get. “According to [the wife’s] own evidence,” the judge noted, the husband “has invoked religious grounds for refusing to cooperate in obtaining a Jewish religious divorce, i.e., that [the wife] by going to secular court has waived her right to rabbinical arbitration concerning the Get.” This was not a case, the judge found, where the husband was withholding the get solely to exact economic concessions. “The withholding of a Get to extort financial concessions from one’s spouse constitutes simony, i.e., an exchange of supernatural things for temporal advantages. When the husband himself so unambiguously subordinates his religion to purely secular ends, he may properly be said to have forfeited the protective mantle of the First Amendment, and the court may, quite rightfully and without constitutional hindrance, impose the secular remedies authorized by the Domestic Relations Law.” But this was not such a case.

Given that the husband articulated religious reasons for refusing to give the get and that there was no agreement to arbitrate that a civil court could enforce, the judge held, correctly in my view, that application of the statute would be unconstitutional in light of the First Amendment. The judge quoted a New Jersey case, Aflalo v. Aflalo, which makes the point very well, though phrased in terms of equity rather than constitutional law:

It may seem “unfair” that [the husband] may ultimately refuse to provide a “get”. But the unfairness comes from [the wife’s] own sincerely-held religious beliefs. When she entered into the “ketubah” she agreed to be obligated to the laws of Moses and Israel. Those laws apparently include the tenet that if [the husband] does not provide her with a “get” she must remain an “agunah”. That was [the wife’s] choice and one which can hardly be remedied by this court. This court has no authority—were it willing—to choose for these parties which aspects of their religion may be embraced and which must be rejected. Those who founded this Nation knew too well the tyranny of religious persecution and the need for religious freedom. To engage even in “well-intentioned’ resolution of a religious dispute requires the making of a choice which accommodates one view and suppresses another. If that is permitted, it readily follows that less “well-intentioned” choices may be made in the future .…

The tenets of [the wife’s] religion would be debased by this court’s crafting of a short-cut or loophole through the religious doctrines she adheres to; and the dignity and integrity of the court and its processes would be irreparably injured by such misuse…

Or as the New York judge put it:

The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant’s withholding a “Get”, but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

I mention the case mostly because the decision provides an illustration of how religious law can work in America and that provides a way we can think about Sharia law here. I’ve written about this several times before (here, here, here, and here). Most discussion of “Sharia in America” is ridiculous and uninformed. Today’s case shows how it might really work, and it shows that US courts are very capable of applying First Amendment principles to ensure that the state does not become the enforcer of religious law.